By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
Another scientist hired by the plaintiffs, Rita Moyes, director of Texas A&M's Microbiology Laboratory, says she found "fairly high" levels of bacteria--including Staph, Pseudomonas and Legionella--in a majority of whirlpool bathwater samples collected from homes and hotels around the country.
Given the surface area of all the tubes and fittings in a recirculating whirlpool tub, it presents the largest "microbial population...to which people are directly exposed in any normal household," Costerton says.
Whether anyone will actually become ill, however, is less clear. Costerton says that a connection cannot be made because infection is a random event, subject to many variables.
It is this unproven link, and the fact that bacteria can be found at certain levels everywhere in the home, that Jacuzzi and the other defendants have seized on to build their defense. The bacteria count in Vandiver's tub in Waco, for instance, was narrowly above the requirements for drinking water under the Safe Water Drinking Act, says Thomas Huber, a microbiologist with the U.S. Veterans Administration who is working with Jacuzzi. Malesovas contends that the defense is specious, because many of the microbes at issue aren't covered by the act, and in nearly every tub tested, counts were higher than the federal allowances.
Jim Kieckhefer, Kohler's corporate counsel, says the plaintiffs' tests amount to a question of "Where's the beef? The people in the test came out just fine, no injury, no problems." He says consumers who follow the company's cleaning guidelines, which require the tub's internal tubes to be flushed with bleach and detergent twice a month, should have no problem keeping bacteria from reaching any significant levels in the pipes. "This isn't something consumers should be alarmed about," Kieckhefer says.
In legal papers filed in late 1999, Jacuzzi claimed that "even though literally millions of whirlpool bath units have been sold by Jacuzzi over the years, there has never been a single documented case of illness, injury, infection or death being caused by harmful organisms multiplying in the piping."
The company went so far as to claim there has never before been a complaint of anyone getting ill because of infectious bacteria in his whirlpool.
But after some lengthy court battles over release of the company's internal documents, it has retracted that claim and turned over letters in which customers have complained of illnesses. It has also released the e-mailed complaints about the black gunk. There likely would have been many more "shmutz" letters, but in early 2000, about six months after Malesovas sued, Jacuzzi threw away a computer containing 16 years' worth of consumer gripes. Oops.
Weeks says the move was part of a routine update of its equipment, but Malesovas finds that--and company officials' testimony about the dirty-water complaints--impossible to believe. "They told us under oath, in depositions and affidavits, that nobody ever made a complaint like we are making," Malesovas says. "After months and months of us not believing them, they finally coughed up these complaints. Their excuse was these weren't complaints, they were simply customer inquiries on how to clean the tub. It was just total garbage.
"Then we noticed the majority of the complaints we were finally given were in e-mails, and we had none prior to February ," he says. "Within months of us asking for this kind of information, they took the computer where it was maintained for the past 16 years and threw it out. Just tossed it."
In Malesovas' view, Jacuzzi's actions since the lawsuit was filed confirm there has been more trouble with the tubs than the company cares to admit.
In 1998, for instance, an Illinois tub owner wrote the company a letter saying he contracted an E. coli bacterial infection that "was caused by the contaminated piping and motor pump." "After using the Jacuzzi tub for the first time, there was an oily film on the walls and bottom of the tub," wrote the man, whose name was redacted from the letter by order of the court.
He said he began feeling a burning sensation in his urinary tract a day after he used the tub for the first time. His doctor diagnosed him as having urinary tract and colon infections and treated him in a hospital emergency room when his temperature reached 103. "I suffered for three weeks with this, and it cost me $788," the man wrote, asking for help with the bill. "I'm telling you this because I don't want another person using your product to go through what I did."
The company wrote back saying that "unfortunately," its equipment did not cause the problem. Company witnesses testified later they did not check whether the man's tub was contaminated or whether there was a chance that what he was claiming might be true.
That same year, another customer complained he bought a new tub and, in short order, "all this black foreign material" began flowing out of the jets. He said he was stricken with "some form of disease which my doctors haven't been able to diagnose to date. One morning I woke up and my legs, arms and other parts of my body weren't functioning properly." He suspects the source was the tub.